SEABOARD COAST LINE RAILROAD COMPANY AND ROBERT J. SCHMIDT, APPELLANTS,
v.
ART A. MAGNUSON, APPELLEE
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A passenger injured in a grade crossing collision with a train sued the railroad. The jury found liability, and the appellate court affirmed, rejecting the railroad's arguments regarding assumption of risk and finding that any trial errors were harmless.
The trial court properly refused to include assumption of risk as an issue because the answer did not adequately allege the required elements. Any errors in admitting hearsay evidence and denying the post-trial motion without a hearing were harmless because the hearsay was irrelevant and was clarified by other testimony, and the post-trial motion raised no new arguments.
[1] A defense of assumption of the risk requires actual knowledge and appreciation of the danger, and thereafter, with a reasonable opportunity to avoid it, a voluntary and d…
[2] A court may refuse to amend a pretrial order to include an affirmative defense if the answer to the complaint did not adequately allege the essentials of that defense.
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Join FLexlaw to unlock all legal intelligence“This defense requires actual knowledge and appreciation of the danger, and thereafter, with a reasonable opportunity to avoid it, a voluntary and deliberate exposure to such danger.”
Establishes the legal elements required for the assumption of risk defense in Florida law.
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Join FLexlaw to unlock all legal intelligenceAppellee was a passenger in an automobile involved in a grade crossing collision with appellants' train, sustaining serious personal injury. The case …
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OWEN, Chief Judge.
Appellee sustained serious personal injury when the automobile in which he was a passenger was involved in a grade crossing collision with appellants’ train. Appellee’s suit, tried before a jury, culminated in a judgment in his favor. Appellants’ first three points are concerned with the affirmative defense of assumption of the risk. This defense requires actual knowledge and appreciation of the danger, and thereafter, with a reasonable opportunity to avoid it, a voluntary and deliberate exposure to such danger. Cleveland v. City of Miami, Fla.1972, 263 So. 2d 573; Bartholf v. Baker, Fla.1954, 71 So. 2d 480; Dana v. Bursey, Fla.App.1964, 169 So. 2d 845. The answer to the complaint did not adequately allege these essentials and thus, the court did not err in refusing to amend the pretrial order so as to include such defense as one of the issues to be tried (Point I).
It necessarily follows that the court did not err in refusing appellants’ requested instructions on this issue (Points II and III).
Appellants’ remaining two points (Points IV and V) both demonstrate error. After an examination of the entire case, we are satisfied such error was harmless. F.S.
Section 59.041, F.S.A. Point IV is concerned with an evidentiary ruling. On rebuttal, plaintiff was permitted to place into evidence as substantive proof of the matter therein asserted, an extrajudicial written statement of a non-party witness. Such written statement was hearsay and the defendants’ objection on that ground should have been sustained.
We conclude that this was harmless error because the content of the hearsay statement was (1) neither relevant nor material to any issue in the case, and (2) adequately explained and clarified by other testimony of the same witness offered by defendants on sur-rebuttal. Appellants’ Point V complains of the trial court’s denial without a hearing of their post-trial motion for directed verdict or for new trial. Although the court can grant a new trial upon its own motion (for which no hearing is required), nonetheless, when one of the parties to an adversary proceeding files a timely motion for new trial under Rule 1.530, RCP, 31 F.S.A. due process requires a hearing thereon after notice to all parties. Cf., Mayflower Inv. Co. v. Brill, 1939, 137 Fla. 287, 188 So. 205; State Dept. of Transportation v. Plunske, Fla.App.1972, 267 So. 2d 337; Polland v. Visual Graphics Corp., Fla.App.1970, 240 So. 2d 835; Prunty v. State, Fla.App.1969, 226 So. 2d 448.
We conclude that the error was harmless in view of the fact that the motion contained no matters which had not been argued previously to the court during the course of the trial.
Affirmed.
CROSS and MAGER, JJ., concur.
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Darrel Carnell v. Carnell, 398 So. 2d 503 (Fla. 5th DCA 1981)…as committed by failing to give him an opportunity to appear has no basis. As to the motion for rehearing, we find that the Florida Rules of Civil Procedure do not specifically provide for a hearing. In Seaboard Coast Line Railroad Co. v. Magnuson, 288 So. 2d 302 (Fla. 4th DCA 1974), the court held that when one of the parties to an adversary proceeding files a timely motion for a new trial under rule 1.530, due process requires a hearing after notice to all parties. In that case, the court held that error w…
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Alberger v. Harvison, 342 So. 2d 537 (Fla. 3d DCA 1977)…next claim as error the trial court’s denial of their post trial motions without a hearing. By way of thorough examination, we find no such mandatory language in Rule 1.530, Fla.R.Civ.P. Nevertheless, in Seaboard Coast Line Railroad Co. v. Magnuson, 288 So. 2d 302 (Fla.4th DCA 1974), our sister court held that due process requires a hearing on a post trial motion for new trial after proper notice to all parties. The court, however, concluded that: “The error [in denying a hearing on said post trial motions]…
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Hous. Auth. OF the City OF Tampa v. Burton, 874 So. 2d 6 (Fla. 2d DCA 2004)…ere was clearly an abuse of discretion. Moreover, there is some authority to suggest the trial court’s failure to conduct a hearing before granting a new trial deprived the Housing Authority of due process. See Seaboard Coast Line R.R. v. Magnuson, 288 So. 2d 302, 303-04 (Fla. 4th DCA 1974) (stating that when a trial court [*13] grants a new trial on its own motion for a reason not argued by the parties at trial, due process first requires notice and a hearing). Here, the county court did indirectly what the…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954)
- Mayflower Inv. Co. v. Brill, 137 Fla. 287 (Fla. 1939)
- State of Fla. Dep't OF Transp. v. Plunske, 267 So. 2d 337 (Fla. 4th DCA 1972)
- Cleveland v. City OF Miami, 263 So. 2d 573 (Fla. 1972)
- Poss v. State, 169 So. 2d 845 (Fla. 3d DCA 1964)
- Janney v. State, 226 So. 2d 448 (Fla. 1st DCA 1969)
- Polland v. Visual Graphics Corp., 240 So. 2d 835 (Fla. 3d DCA 1970)